Roe v. State

Decision Date27 July 1887
Citation3 So. 2,82 Ala. 68
PartiesROE v. STATE. [1]
CourtAlabama Supreme Court

Appeal from Hale county court; JAMES M. HOBSON, Judge.

Indictment for wanton injury to domestic animal.

Syllabus by the Court.

Under statutory provisions, (Code, § 4889,) the objection cannot be raised on error, for the first time, that the record does not show that the foreman of the grand jury was sworn.

A tender of full compensation to the owner of the animal killed or injured, and its refusal by him, before the commencement of the prosecution, is a bar to it, (Code, § 4409-4411;) and if a bona fide offer of full compensation is made, a refusal by the owner to accept it, declaring that he will not receive it, is an implied waiver of the production of the money; superseding 2 South. Rep. 459.

Thos. R. Roulhac, for appellant.

Thos. N. McClellan, Atty. Gen., contra.


Under Code 1876, § 4889, no objection can be taken to an indictment, by plea in abatement or otherwise, on any ground going to the formation of the grand jury, except that the jurors were not drawn in the presence of the officers designated by law. The objection that it does not appear from the record that the foreman was sworn, comes too late when made for the first time in this court. Floyd v. State, 30 Ala. 511; Billingslea v. State, 68 Ala. 486.

The court refused to instruct the jury, as requested by defendant, that if the defendant sent his employer to the owner of the hog to offer compensation, and, on such offer being made, the owner replied that she did not want any of defendant's money, and that he should not have any of the meat of her hog, such reply was a refusal to accept compensation, and excused any other or further tender. Code § 4411, provides that no conviction must be had under section 4409, under which the defendant was convicted, "when it is shown upon the trial of the cause that the owner of the property has been satisfactorily compensated, or full compensation has been tendered for the damage to the same, before the commencement of the prosecution." The statute converts what was theretofore a civil trespass into a misdemeanor. The offense created is an offense against the property. Malice against the owner is not an element. One purpose of the statute is compensation to the owner, to whom one-half of the fine goes. The policy is that, when such compensation has been made or tendered, the public good does not...

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5 cases
  • State v. Churchill
    • United States
    • United States State Supreme Court of Idaho
    • January 2, 1909
    ...the owner of the property destroyed. (Territory v. Crozier, 6 Dak. 8, 50 N.W. 124; State v. Coleman, 29 Utah 417, 82 P. 465; Roe v. State, 82 Ala. 68, 3 So. 2; v. State, 28 Ga. 190; State v. Hambleton, 22 Mo. 452; Brown v. State, 26 Ohio St. 176; State v. Toney, 15 S.C. 409; Manes v. State,......
  • Tanner v. State
    • United States
    • Supreme Court of Alabama
    • June 26, 1891
    ...of the statute. We have heretofore regarded it as healing more palpable irregularities than that complained of in this case. In Roe v. State, 82 Ala. 68, 3 South. Rep. the record showed that all the grand jurors were sworn except the foreman, and was silent as to him. We held that this was ......
  • Sampson v. State
    • United States
    • Supreme Court of Alabama
    • June 20, 1895
  • Dotson v. State
    • United States
    • Supreme Court of Alabama
    • January 27, 1890
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